Andrea Grant-Smith, Senior HR Consultant
Many employers think there is nothing they can do if they cannot pin point and prove who exactly carried out the misconduct – for example, theft or misappropriation of company property. But this is not true as there is an allegation that can be formulated of either team misconduct and derivative misconduct that could apply. Under both team misconduct and derivative misconduct there is no need to prove individual guilt due to common cause purpose.
Team misconduct is an allegation used when an employer cannot say who exactly misconducted themselves, but can narrow it down to a group of employees who were working when the misconduct occurred, or continually occurs. The employer could then allege that all employees in the group as a team have misconducted themselves.
Example: An employer experiences stock losses, and although they have put measures in place to prevent further stock losses (locks of stock rooms etc.), the losses continue to occur. The employer may have also implemented measures to identify the perpetrators i.e. cameras, employee interviews etc. but cannot identify who exactly has been taking the stock, and other employees may refuse to tell the employer who is involved, or deny that they know who the perpetrators are. The employer would have also made each employee aware that preventing stock losses was a part of their duties and responsibilities, and their responsibility to report all stock losses and any acts of misappropriation.
If the employer has taken such steps as discussed above, and is still unable to identify who has been committing the misconduct, then they have the ability to allege that the group is guilty of Team Misconduct, as the group would have been narrowed down to a number of employees who would either have been involved in the misconduct or known about it.
It is sufficient that the employee is a member of a team whose members had individually failed to ensure that the team met its obligations to ensure there were no stock losses.
[see True Blue Food (Pty) Ltd t/a Kentucky Fried Chicken (KFC) v The CCMA A Deyzel NO, Sello Nhlabiseng and Others; and FEDCRAW v Snip Trading (2001)]
Derivative misconduct is used when employees refuse to give information that could assist the employer in the investigations to identify the perpetrators. Withholding information and not assisting the employer in the investigations deem the employees culpably involved in the misconduct. Failure to assist the employer in bringing the guilty to book violates the employee’s duty of good faith towards his/her employer and may in itself justify dismissal.
Example: An employer experiences sabotage, and finds that employees are unwilling to provide information that could assist in the investigations and lead to the identification of the perpetrators. The employer makes it clear to all employees that if there is further sabotage and no employees are willing to assist the employer with information, then all employees will be held responsible, and all dismissed. When the Sabotage reoccurred and the employees again did not comply, they were seen as breaching their duty of good faith, and culpably involved in the misconduct. The employer then disciplined them as a group and dismissed them all for the derivative misconduct and sabotage.
[see Western Platinum Refinery Ltd v Arnold Hlebela, Van Wyk NO and the CCMA; and Chauke v Leeson Motors (1998)]
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